12/19/2018

Eric Segall on Stare DecisisMichael Ramsey

On Wednesday of last week, Mike [Dorf] wrote a typically thoughtful post [Ed.: noted here] on the difficulties originalists (and others) have when determining proper standards for the Court to use when deciding whether to overturn prior cases. One of his conclusions, that "originalist acceptance of stare decisis very substantially constrains the role of original meaning in determining outcomes, even accepting the originalists' own premises," is I think exactly right. But Mike did not ask, nor try to answer, what I think is an antecedentquestion about the role of precedent in the Supreme Court: Does the doctrine exist at all apart from stylistic rhetoric that pops up from time to time in Supreme Court opinions? I think the answer to that question is important and obvious--no.

It is true that when the Court is asked to explicitly overrule a case, and the Justices want to, they will usually spend some time discussing a bunch of factors like reliance on the prior case or whether the original decision has been undermined by later cases before announcing the reversal. The dissent (there are almost always dissents in such cases) will then claim there were no "special reasons" for overturning the prior decision. These discussions are almost always simply after-the-fact rationalizations for conclusions reached on other grounds.

The reality, on the ground, is that whether by explicit reversals, or through slicing and dicing, or through subtle and clever factual and legal distinctions, the Court has reversed itself in virtually every major category of litigated constitutional law based on the values of the Justices sitting at the time. In my account below, I leave out the 4th through 8th Amendments because I am not an expert in those areas. This post is far more descriptive than I usually write, but at the end I'll make what I think are a few important substantive points and then pose a few questions. Nothing in this post suggests that lower court judges don't take vertical precedent seriously. As usual, I am writing just about the Supreme Court.